Dimensions of Piracy: States, Privateers and Hostes Humani Generis

Chapter 3 Dimensions of Piracy: States, Privateers and Hostes Humani Generis

The Roman histories explored in Chapter 2 suggest that a distinction was drawn between “civilised” Rome and “primordial” peiratēs (or piratae), com- munities who fell short of the expectations of the universally applicable jus gentium. As a result these outsiders were rendered communes hostes omnium, denounced by Cicero and warranting extermination at the hands of Pompey.1 A close investigation of the relevant events of this period, however, does not provide us with a clear definition of “piracy” given the apparently ambiguous nature of the peiratēs.2 Rather, the definition of “piracy” became wrought with an ambiguity that would not be clearly resolved until the formalisation of a specific definition in the 1958 Geneva Convention on the High Seas.3 The situa- tion became more complex over the intervening centuries as the term “piracy” was applied to a broad range of different maritime actors, complicating the identity of the “pirate” and creating issues for any straightforward exposition of Kontorovich’s “piracy analogy”. These different actors include privately moti- vated sea-robbers (“pirates” in the traditional sense), rudimentary polities (the latter-day equivalent of the Cilician peiratēs) and State-sponsored “privateers”. “Privateering” refers to the common tendency among States (from at least the thirteenth century)4 to engage in plunder by proxy via licenses issued to privately funded mariners. Privateering was identical to piracy in every way

1 Supra, 2.1.5. 2 Ibid. 3 Article 15, providing that “Piracy consists of any […] illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State”. This definition, reproduced in Article 101 of the 1982 United Nations Convention on the Law of the Sea, remains somewhat problematic; discussed infra, 7.1. 4 The earliest privateering commissions were issued in England by Henry iii in 1243, contain- ing instructions to “annoy our enemies by sea or by land”; see Theodore M. Cooperstein, “Let- ters of Marque and Reprisal: The Constitutional Law and Practice of Privateering”, 40 Journal of Maritime Law and Commerce (2009) 221, 223.

56 Chapter 3 except that the plunderer had obtained State authorisation for their actions.5 A privateering commission (or “letter of marque”) would permit the plunder of merchantmen belonging to an identified State (or States) or, in some cases, allow the holder to attack and suppress suspected pirates.6 Yet privateers often operated on the edge of legality, pushing the terms of their commissions to their limits.7 Conceptions of “good” States versus “evil” pirates merged into a grey area where maritime plunder became the norm.8 Yet even while States openly and commonly engaged in plunder, stateless pirates remained the sub- ject of disdain and abhorrence, in keeping with the divisive rhetoric of Cicero.9 These issues are part of the broader problem of piratical identity, this being the overarching theme of this chapter. The histories outlined in Chapter 2 and the later prevalence of privateering suggest that there is something inherent in the underlying nature of piracy that renders it opprobrious as opposed to, simply, the act of plunder. This chapter explores this problem of identity (or “nature”) through two related subjects. The first of these is the practice of privateering, the common occur- rence of which appears to create some difficulty regarding the definition of and perceived “heinousness” of piracy.10 Understanding this phenomenon is an important part of understanding the relationship between States and pirates as well as between piracy and universal jurisdiction. Eugene Kontorovich,

5 Eugene Kontorovich, “The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foun- dation” 45 Harvard International Law Journal (2004), 183, 210–223. 6 Cooperstein, supra no4. 7 Lauren Benton A Search for Sovereignty: Law and Geography in European Empires, 1400– 1900 (Cambridge: cup, 2010), 113. What is not clear is the exact point at which a “privateer” becomes a “pirate”. Clearly he would need to exceed the terms of his commission (with Captain Kidd an archetypal case in point, see 5.2, infra). However, the League of Nations Committee of Experts for the Progressive Codification of International Law, Question- naire No. 6 adopted January 1926 (reproduced in 20 American Journal of International Law (1926) 222, 227) notes that “although the object of the privateersman is to take the property of others, [he possesses] a legal standing as regards nationality; at the same time it places responsibility upon the nation whose flag he flies, and thereby excludes any idea of piracy”. 8 On the prevalence and past acceptability of State-sponsored plunder see: Thomas Hee- bøll-Holm, Ports, Piracy and Maritime War: Piracy in the English Channel and the Atlan- tic, c. 1280–c. 1330 (Leiden: Brill, 2013), 5; Hugo Grotius, The Rights of War and Peace (ed. Richard Tuck, from the edition by Jean Barbeyrac), (Indianapolis: Liberty Fund, 2005), Book iii, Chapter V (“Of Spoil and Rapine in War”); and Philip De Souza, “Piracy in Clas- sical Antiquity: The Origins and Evolution of the Concept” in Stefan E. Amirell and Leos Müller (eds), Persistent Piracy: Maritime Violence and State-Formation in Global Historical Perspective (Basingstoke: Palgrave Macmillan, 2014) 24, 24 and 27. 9 See infra, 3.2.2. 10 Particularly as explored in Kontorovich, supra no5.